Prepared and Presented by:
Clarence T. Guthrie III
The Guthrie Firm, PLLC

USE OF EXPERTS IN MISSISSIPPI By Clarence Guthrie

A. The Current State of the Law Regarding Expert Testimony in Mississippi

1. Foundational Reading – the following rules, cases, and secondary materials are recommended as foundational reading when confronted with an expert witness issue in Mississippi:

Federal Rule of Evidence 702 (as amended April 17, 2000)
Mississippi Rule of Evidence 702 and Comment (as amended May 29, 2003)
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
Mississippi Transp. Comm’n v. McLemore, 863 So.2d 31 (Miss. 2003)
f. Judge Harvey Brown, Eight Gates for Expert Witnesses, 36 Hous. L. Rev. 743 (1999)
g. Judge Harvey Brown, Procedural Issues under Daubert, 36 Hous. L. Rev. 1133 (1999)
www.daubertontheweb.com
www.dauberttracker.com

2. History
a. Federal
Until 1993, the “general acceptance” test described in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923), guided federal courts in deciding whether to admit expert testimony at trial. Under the Frye test, expert scientific evidence was admissible only if the principles on which it was based had gained "general acceptance" in the scientific community. Despite its widespread adoption by state and federal courts, this standard was criticized as unduly restrictive, because it sometimes operated to bar testimony based on intellectually credible but somewhat novel scientific approaches.

In the 1993 Daubert1 case, the U.S. Supreme Court was asked to decide whether the Frye test had been superceded by Rule 702 of the Federal Rules of Evidence, adopted in 1973. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). At that time, Rule 702 did not even mention “general acceptance,” but instead provided: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." The Court held that Rule 702 did, in fact, supplant Frye, finding that the “scientific knowledge” referred to in the rule must be grounded in the methods and procedures of science -"the scientific method."

The Court also noted that expert testimony must assist the trier of fact. This, according to Daubert, was primarily a question of relevance or "fit." The testimony must be sufficiently tied to the facts of the case to aid in the resolution of an issue in dispute.

The Court DID NOT adopt a "definitive checklist or test" for determining the reliability of expert scientific testimony, and emphasized the need for flexibility. The Court did list several factors, however, that it thought would commonly be pertinent:

(1) whether the theories and techniques employed by the scientific expert have been tested;

(2) whether they have been subjected to peer review and publication;

(3) whether the techniques employed by the expert have a known error rate;

(4) whether they are subject to standards governing their application; and

(5) whether the theories and techniques employed by the expert enjoy widespread acceptance.

1 Correctly pronounced "Dow-burt." See Michael H. Gottesman, Admissibility of Expert Testimony After Daubert: The "Prestige" Factor, 43 Emory L.J. 867, 867 (1994).

Daubert, 509 U.S. at 592-594. The Court has continued to emphasize in subsequent opinions that the Daubert factors are not necessary conditions, and that it can neither rule out, nor rule in, for all cases and all times, the applicability of the Daubert factors “because too much depends upon the particular circumstances of the particular case at issue.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999). In short, it is a MISTAKE to view these factors as mutually exclusive necessary conditions; not all will apply to every case.

Daubert was followed by General Elec. Co. v. Joiner, 522 U.S. 136 (1997), holding the standard of appellate review of the trial court’s rulings on admissibility of expert testimony to be abuse of discretion. In Kumho Tire, the Supreme Court held that the Daubert analysis, requiring the trial judge to serve as the “gatekeeper” of scientific evidence and evaluate its relevance and reliability, applied to all expert testimony, clarifying that Daubert does not apply only to scientific evidence, but also applies to “technical, or other specialized knowledge” listed in Rule 702. Kumho Tire, 526 U.S. at 150.

In December 2000, Federal Rule of Evidence 702 was amended to conform to the Daubert decision. The rule now reads:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

b. Mississippi

Mississippi clung to the Frye “general acceptance” test until 2003, when the Supreme Court in Mississippi Transp. Comm’n v. McLemore, 863 So.2d 31 (Miss. 2003) adopted the “modified Daubert”2 standard as the basic test. The court first noted that Mississippi Rule of Evidence 702 was amended on May 29, 2003, making it identical to Rule 702 of the Federal Rule of Evidence. The court then commented on its long adherence to the Frye rule despite adoption of M.R.E. 702 and major changes in federal evidence law. Id. at 36. However, acknowledging the similar changes in both the federal and state versions of Rule 702, and continuing to emphasize the gatekeeping function of the trial court to determine whether expert testimony is relevant and reliable, the court adopted the modified Daubert standard:

With a focus on relevance and reliability, this approach is superior to the “general acceptance” test in Frye, because the Frye test can result in the exclusion of relevant evidence or the admission of unreliable evidence.

Id. at 40. So it appears that Daubert is now the accepted test for determining the admissibility of expert testimony in Mississippi. BUT WAIT! The McLemore opinion was released on October 16, 2003. On May 13, 2004, the Mississippi Supreme Court released Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 60 (Miss. 2004), in which it stated:

This Court has continually insisted that it must be “scientifically established that due investigation and study in conformity with techniques and practices generally accepted within the field will produce a valid opinion” before an opinion based on “those techniques and practices” will be considered for admission in a Mississippi Court. (emphasis added).

It seems that the Frye test is not dead in Mississippi. The wise practitioner will work an argument for or against “general acceptance” into his Daubert motion in Mississippi until further guidance is given.

2 “modified Daubert” refers to the Daubert rationale for evaluating scientific testimony, applied to all expert testimony. See Mississippi Transp. Comm’n v. McLemore, 863 So.2d 31, 38 (Miss. 2003)